The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at GTMO have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. On the latter ruling, as I predicted, the mess of the Bismullah case might have been the straw that broke the camel's back: "The order denying rehearing [in Bismullah] was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases."

Thus, the petitioners will be able to have habeas petitions considered in district court. [UPDATE: On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base. Or as Gerry Neuman and Harold Koh put it in their amicus brief in Rasul: "The U.S. government should not be permitted to evade judicial scrutiny by transporting [prisoners] to Guantanamo instead of Puerto Rico."]

That's very, very big news. (More important news in the Court's decision in Munaf today -- about the habeas and other rights of U.S. Citizens detained by U.S. forces in Iraq and the "Hirota Question" -- about which more in a bit.)

But as far as I can tell just yet, the Court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside GTMO; and

2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."

At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:

It does not speak to whether GTMO should be closed (although it basically undermines the Administration's principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive's conduct).

Nor does it affect, in any dramatic sense, possible military commission trials -- with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.

"I do not see any serious impetus for congressional action before the election. Why?

Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves -- the trials of a small percentage of the GTMO detainees for alleged war crimes violations -- and therefore there will be no call for a new "special court" process to replace the commissions. ([Because the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission) -- but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)

What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as "enemy combatants"? Well, [because] the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?"

"Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

It was clear at oral argument that Kennedy did not think the DTA scheme for review of CSRT decisions was an adequate substitute for habeas. Boumedienne is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

Kennedy makes a completely disingenuous and self serving claim that the precedent in this area is indeterminate, a claim which Scalia eviscerates in his scathing dissent.

However, Souter does not even have the good taste to hide behind Kennedy's pathetically small fig leaf of indeterminacy. Instead, Souter openly concedes Scalia's observation that the Court has extended habeas corpus jurisdiction to foreign POWs for the first time in Anglo American history. In response, Souter offers the equivalent of the retort "tough sh_t!" After all, Souter observes, the Court in rewriting the habeas statute in Rasul made it plain that they would rewrite the Constitution the next time around.

The only amusing observation I can take away from this appalling outlaw decision is that the same folks who criticize the Executive for ignoring the Congress when it exercises unenumerated powers are celebrating the Court for the second time ignoring Congress exercising its enumerated powers.

-- And since Senator Lindsey Graham was instrumental in crafting both the DTA and MCA --.

I think both bills were crafted outside of Congress. Senator Graham was mostly advocating the position he was given, and not crafting his own position.

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I think this decision would have come out the other way, but for the stories in oral argument about the nature (adequacy/inadequacy) of the CSRT proceedings. That nature is also a huge factor in the pending DC Circuit cases (Bismullah), and SCOTUS decided to address it now, rather than remand or wait for the DC Circuit to reach a conclusion.

What is striking is how poor the Chief Justice's reasoning seems to be: that the barring of habeas is acceptable given that detainee rights/protections are stronger than they have been in the past. This relativity argument includes no substantive grounds for what is allowable and what isn't, (read: that since detainees had absolutely no process for years, now that they have some it must be ok).

This is especially striking in light of the fact that Kennedy is saying it remains a valid question whether "enemy combatant" is a legitimate category in the first place.

My questions are two:

What might this decision imply about potential federal court appeals from final commission decisions?

What happens if they send just these detainees back to Bagram or foreign locales?

-- the barring of habeas is acceptable given that detainee rights/protections are stronger than they have been in the past. --

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I too see that as a sound-bite argument. In order to reach a defensible opinion on "protection of rights," one has to see the rules AS APPLIED. The CSRTs involved in these cases have been too opaque and appear slanted. Maybe they aren't, but without the right see the details (even in camera), no credible court is going to bless the process or outcome.

The key passage is in Souter's concurrence. These guys have been locked up for 6 years, he says, so don't give us any BS about emergency war powers and expeditious Defense Department review.

I would suggest this is probably more than anything what the Bart DePalmas of the world miss. Yes, there are some precedents for indefinite detention of POW's (though there are also some contrary precedents). But they were decided in very different contexts. Here you have a war against an undefined enemy with the administration claiming that the entire world is a battlefield. The Court is saying that whatever military powers were conferred on the political branches, the Constitution wasn't meant to authorize THAT sort of indefinite detention.

In the trees, I can understand conservative objections to this decision. But the majority sees the forest.

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999).

To call this claim breathtakingly disingenuous may be generous. There is NOTHING new about this situation. During the entire Anglo American history of the Writ, the English and American armies have taken prisoners of war from regular and irregular militaries and this is the first time over those hundreds of years in which a civilian court has arrogated the power to determine the status of foreign POWs. The length of the war does not grant the Court this executive power.

The other comment I would make is that Scalia-- vaunted, "principled", Scalia-- basically endorses the most extreme right wing (and completely false) summation of the war on terror before even reaching any legal issues in his dissent. He's fairly announcing to the world that "I am deciding this case based on my personal predilections rather than the law". And his statement that the Court's decision will get people killed is absurd-- especially since he joined Roberts' decision which says that the Court's decision won't afford the detainees any new rights in the end.

This guy, the hero to conservatives, is rapidly lurching towards the "worst Supreme Court Justice in history" competition in his old age.

As al Qaeda has been defeated, most of the Gitmo prisoners have been released.

The implication that the writ is somehow triggered for foreign POWs based on the length of a war is completely novel and was not incorporated into the Constitution with the Suspension Clause.

If the Court thought that it would be wise policy to amend and extend the writ to cover POWs in a long war, then it should have recommended that Congress amend the habeas corpus statute to extend the writ. Instead, this arrogant Court amended the Constitution again.

Finally, Scalia did not go far enough with his observation that this decision could get people killed. When presented with the option of taking an enemy prisoner that the courts may release to shoot at me again or simply killing the enemy, which option do you think the average grunt will favor?

You really think that troops will begin summarily executing people on the basis of this ruling? You think that analysis is going to occur for the "average grunt"? I find it interesting that you, as a lawyer, believe that a review of the situation would not yield the appropriate result--i.e. that the gov't would not be able to prove a person is a terrorist or taking up arms against the US. Because in your hysteria, that is exactly the implication.

-- There is NOTHING new about this situation. --.Except to some, it's a "new kind of war, with a new kind of enemy." And the newness of it all justifies a new DTA and MCA..Nope, nothing "new" at all.

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I see in Scalia's dissent, that the President relied on the legal opinion of Yoo for the proposition that GTMO is out of judicial reach, based on a reading of Eisentrager. I haven't read the dissent to see how Scalia differs with the majority's differentiation of Eisentrager with GTMO. I hope he expressed more than "appeal to authority."

and quit wasting keystrokes on Bart - my god, his 'blog' makes the claim last week's SSCI II report - proves Bush didn't lie - his proof: citing the WaPo's editorial board. um, yeah. leave him be to his game of Rainbow Six

If you minimize de jure distinctions and ignore the Court's opinion on the great difference in the practicality of applying habeas at GTMO versus the claimed historical parallels, then there is NOTHING new about this situation.

If you minimize de jure distinctions and ignore the Court's opinion on the great difference in the practicality of applying habeas at GTMO versus the claimed historical parallels, then there is NOTHING new about this situation.

And if "practicality" had anything to do with the price of tea in China, that "fix" might be relevant. Eisentrager did not turn on the claim that it was "impractical" to grant constitutional rights to enemy aliens in foreign countries, but on the grounds that it's loony to think that habeas applies in such situations.

"The order denying rehearing [in Bismullah] was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have." Therefore, without SCOTUS answering any of these questions itself, the case is remanded directly to several dozen DC Circuit judges who have already issued far more than five different positions on these difficult issues. This guarantees that no two cases will arrive at the same conclusion about the fundamental legal questions, and brings the case back to the high court in another two years.

"The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.

The only thing Scalia eviscerates are the meager scraps that remain of his reputation as an intellectually honest jurist. Scalia LIES THROUGH HIS TEETH when he writes at p. 23 of his dissent:

"all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction."

This is an audacious and FLAT-OUT UNTRUTH and directly contradicted by Kennedy J.'s review of the amicus materials. Namely, amicus cited the case of 18th Century India to show that the great writ was indeed available in a territory that was under de facto English control, yet formally under the sovereignty of a foreign power. The ONLY basis that the majority found for distinguishing the cases was that in India, the writ was heard by an English court sitting in Calcutta.

(This is not really a consequential distinction when one considers some of these cases involved the court at Calcutta entertaining the writ brought on behalf of foreign persons held by British officials in India even outside of the territory of English control.)

Scalia's dissent, needless to say, does not bother to mention these amicus submissions, or the majority's consideration of them.

Given that an advocate before the federal courts who submitted an argument in this manner would be potentially subject to sanction for unprofessional/unethical conduct, I find Scalia's opinion shameful--although not surprising, given that Scalia has long-ago abandoned any pretense of possessing a temperament appropriate to the judiciary, nevermind the highest court in the nation.

On a previous thread, I expressed doubt as to how the Court would deal with this matter. I am naturally pleased that a bare majority of the Court has come to the traditional common law position of holding that the common law writ must be available to anyone detained by executive fiat so as to enable the Court to enquire into the legality of detention.

Secondly, the Court was, I think, extraordinarily careful not to determine the status of detainees, precisely because I think the majority has difficulty with Bart’s generalisation that all are “prisoners of war” in Bush's nebulous “global war on terror” which is a legal novelty.

Naturally, Neocon Bart is outraged and I imagine many other “loathsome spotted reptiles will be too.

But the Neocons only have themselves to blame. That’s what comes from taking a view of presidential power which transcends even that claimed by King George III at the time of the US break with the Crown.

In a very real sense, the Bush Administration and above all, the Neocon lawyers advising him, brought this mess upon themselves – (i) by seeking to create a ‘legal black hole’ where the detainees would be immune from legal process for ever and (ii) by crafting ‘made to measure’ military kangaroo courts - which the majority plainly did not like.

If the Administration had used better lawyers, especially during the period when they had a firm majority in both houses of Congress which they do not now have, a system could have been crafted which might have avoided the majority reaching the conclusion it did.

It is interesting to note from the discussion of the WW2 military tribunal cases that, if the Administration had availed itself of the Chapter VII authority that was on offer by the UNSC for intervention in Afghanistan, language could have been written into the Chapter VII resolution to create a detention process and a proper tribunals for the emergency in Afghanistan and, I believe, the Court would have been only too happy to limit the enquiry on habeas to whether a prisoner was lawfully detained under such process and if so, deny relief on the merits.

Three muted cheers for the majority – habeas relief should be swift and as the majority duly noted - some detainees have been detained for 6 years already.

What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as "enemy combatants"? Well, [because] the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?"

Why indeed? To stall and buy time, of course! They don't want things to fall apart completely in the days before the election (and that's the event horizon for the Republicans right now).

That's been their MO since day one, and they'll drag it out with new wrinkles, all the while thumbing their noses at the Supreme Court and all that believe in due process of law. They've done it twice so far; why stop when they're so near the finish line?

I'd note that the stonewalling on investigations and claims of "state secrets" and "executive privilege" have all been of the same ilk....

Eisentrager did not turn on the claim that it was "impractical" to grant constitutional rights to enemy aliens in foreign countries, but on the grounds that it's loony to think that habeas applies in such situations.

Actually, Eisentrager did turn in part on practical concerns and on the Court's judgment as to whether and to what extent jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Johnson v. Eisentrager, 339 U.S. 763 (1950) at 779.

In Boumediene, Kennedy clearly distinguishes the facts from those in Eisentrager, and does so on essentially the same grounds as he did previously in his concurrence with the Court's decision in Rasul:

First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777—778.

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U.S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Well, today's opinions in Munaf v. Secretary of the Army and Secretary of the Army v. Omar holding that, while the petitioners have access to habeas corpus, the reviewing US courts cannot order the Army not to release the petitioners into Iraqi custody, suggests a remedy to the Boumediene decision.

The United States should release all detainees at Gitmo who are not to be tried as war criminals by the United States into the custody of the country where they were captured or the country of their citizenship.

All future POWs are to be kept in the countries where they are captured, if necessary by the armed forces of that country.

Bart said: "All future POWs are to be kept in the countries where they are captured"

Are you now conceding that the detainees at Guantanamo are NOT "enemy combatants", but instead Prisoners of War? If so, then where does your argument go about their interrogators' immunity from Geneva restrictions?

Actually, Eisentrager did turn in part on practical concerns and on the Court's judgment as to whether and to what extent jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Johnson v. Eisentrager, 339 U.S. 763 (1950) at 779.

No, it didn't. The fact that the court listed negative consequences if the respondents' position was adopted -- the section you're citing -- does not mean that the negative consequences represent the reason for the holding. The Eisentrager court did not say, explicitly or implicitly, that if habeas hearings didn't interfere with the war effort, that it would have ruled the other way; it held, explicitly, that the writ does not run to aliens outside the territorial jurisdiction of the U.S.

While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."

You are misreading Eisentrager, David. The argument in the relevant section of 339 U.S. 777-780 wherein the Court refers to consequences that "would hamper our war effort or aid the enemy" is of the following form. To the argument that a "limited opening of our courts to resident aliens" must be allowed because "among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law," the Court replies that, no, the prisoners' status as enemies is not in dispute. The Court continues that, just as with the Court's decision regarding resident alien enemies, non-resident enemies too are denied "use of our courts that would hamper our war effort or aid the enemy." The Court then proceeds to list a host of practical reasons why granting non-resident enemies even a limited opening to use our courts would be seriously detrimental to our war effort or aid the enemy.

The response that the opening of the courts to Quirin and Yamashita should also guarantee such use of the courts to the enemy prisoners in Eisentrager is rejected by the Court in part because the prisoners in Quirin were within the United States and Yamashita was a prisoner in an insular possessions over which the United States was sovereign. However, it should be noted that the fact that the prisoners in Quirin "were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally" was not the only "grave ground[] for challenging military jurisdiction" and demanding access to the civil courts recognized by the Court's opinion. It also includes the following accounting of other "grave grounds": "They were arrested by civil authorities, and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. They waived arraignment before a civil court, and it was contended that the civil courts thereby acquired jurisdiction, and could not be ousted by the Military. None of the places where they were acting, arrested, tried, or imprisoned was, it was contended, in a zone of active military operations, was not under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction." It should be further noted that the Eisentrager Court, as it does in its treatment of Quirin, does not reject the application of Yamashita to Eisentrager directly and solely on the basis of sovereignty. Rather, the Court notes that the "heads of jurisdiction" in Yamashita cannot be invoked by the prisoners in Eisentrager. United States sovereignty over its insular possessions in the Philippines occasions United States jurisdiction. That makes sovereignty a sufficient condition for jurisdiction, but does not argue to necessity.

So, what we actually have is the Court presenting multiple reasons for denying habeas to undisputed enemy prisoners, and the use of sovereignty only as a stepping stone to establishing jurisdiction over the place of the prisoners confinement, which in turn is of particular relevance to the question of enemy prisoners' access to U.S. civil courts.

All of that makes Eisentrager very different from Boumediene, where the prisoners' status as enemies is precisely the matter in dispute, and the Court has already determined that their residence at Gitmo places them within the jurisdiction of the United States, despite the fact that said jurisdiction is not conferred by de jure sovereignty over Guantanamo Bay.

All else aside, if this opinion helps put a stake through the faux-formalist nightmare that is the Insular Cases, it can be marked down as unalloyed good news for Constitutional jurisprudence in general.

I'm unclear as to whether this decision gives habeas rights to ordinary POWs who are transferred to US territories or whether it rejects the Administration's attempts to avoid giving the detainees POW status.

Bart DeP says: "The United States should release all detainees at Gitmo who are not to be tried as war criminals by the United States into the custody of the country where they were captured or the country of their citizenship."

Maybe you should read the cases and learn something about their factual contexts before you comment on them.

The lead plaintiff in Boumediene was among a group of alleged terrorists turned over by Bosnian officials to U.S. forces in Bosnia--very likely at their request--after they were released by the Bosnia Supreme Court because of a lack of evidence that they were actually planning terroristic acts.

So you see, Bart, you have the causation reversed. Your "solution" is not a "remedy" to Boumediene. Instead, it was one of the (potentially) permissible options that characterized the status quo ante between civilized nations, prior to the Bush Administration's protracted attempt to maintain an interstitial law-free-zone.

(Of course, the acceptability of handing over detainees to country for disposal depends on the context of the capture of the detainee, the strength of the evidence against him, and whether the accepting country uses rasonably fair procedures to determine whether they should be subject to a war crimes tribunal, prosecution under ordinary municipal criminal law, or release--in some cases, scooping someone up with little or no evidence and dumping them in a country whose human rights record your own executive condemns (IE Syria) would merely be a form of governmental rendition/kidnapping).

This is rather amusing, since the effective upshot of your argument seems to be that the aprpopriate response to the Supreme Court's decision would be for the Bush Admin to do what a lot of people who care about human rights and international law wanted it to do all along.

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